An Introduction to
Islamic Family Law
A Teaching and Learning Manual
Shaheen Sardar Ali
University of Warwick, UK & University of Oslo, Norway
Ayesha Shahid
Hull University, UK
Mamman Lawan
Bayero University, Kano, Nigeria
Edited by Gaenor Bruce
©2010 UKCLE
Contents
Introduction ...................................................................................................... 4
Aims and Objectives.............................................................................................................. 4
Teaching Methods ................................................................................................................. 5
Course Outline ...................................................................................................................... 8
Assessment methods ............................................................................................................ 9
Materials ................................................................................................................................ 9
Chapter One .................................................................................................. 10
Historical Overview and Sources of Islamic Law ................................................................ 10
Lectures ............................................................................................................................... 10
Seminars ............................................................................................................................. 12
Assessment: Essay Question ............................................................................................. 14
Reading ............................................................................................................................... 14
Core texts ............................................................................................................................ 14
Supplementary reading ....................................................................................................... 15
Chapter Two .................................................................................................. 16
Marriage .............................................................................................................................. 16
Lectures ............................................................................................................................... 16
Seminars ............................................................................................................................. 18
Assessment: Essay Questions ............................................................................................ 20
Reading ............................................................................................................................... 21
Core texts ............................................................................................................................ 21
Supplementary reading ....................................................................................................... 21
Chapter Three ................................................................................................ 23
Dissolution of Marriage........................................................................................................ 23
Lecture ................................................................................................................................ 23
Seminar ............................................................................................................................... 24
Assessment: Research Project ........................................................................................... 25
Assessment: Problem Question .......................................................................................... 25
Assessment: Drafting Skills ................................................................................................. 25
Readings ............................................................................................................................. 26
Core texts ............................................................................................................................ 26
Supplementary reading ....................................................................................................... 26
Chapter Four .................................................................................................. 28
Parents and Children........................................................................................................... 28
Lecture ................................................................................................................................ 28
Seminar ............................................................................................................................... 31
Assessment: Essay Question ............................................................................................. 32
Reading ............................................................................................................................... 33
Core texts ............................................................................................................................ 33
Supplementary reading ....................................................................................................... 34
Chapter Five .................................................................................................. 35
Law Reform in the Muslim World ........................................................................................ 35
Aims and Objectives............................................................................................................ 35
Lecture ................................................................................................................................ 36
Seminar ............................................................................................................................... 38
Assessment Question: ........................................................................................................ 41
Core Reading ...................................................................................................................... 41
Supplementary Reading ...................................................................................................... 42
Chapter Six .................................................................................................... 43
Application of Islamic Family law to .................................................................................... 43
Muslim Diasporic communities ............................................................................................ 43
Lectures ............................................................................................................................... 43
Seminars ............................................................................................................................. 46
2|Page
Assessment: Research Project ........................................................................................... 47
Assessment details ............................................................................................................. 47
Aims and objectives of the assessment .............................................................................. 47
Methodology: ....................................................................................................................... 48
How to go about this project: ............................................................................................... 48
Next steps and how to write it up ........................................................................................ 51
Assessment: Essay Question ............................................................................................. 52
Core Reading ...................................................................................................................... 52
Supplementary Reading ...................................................................................................... 52
3|Page
Introduction
Aims and Objectives
This teaching and learning manual has been developed with the aim of
supporting teachers and students interested in Islamic law in general and
Islamic family law in particular, in both Muslim and non-Muslim jurisdictions. It
forms part of a series of manuals and materials including an Islamic law
Bibliography and a Glossary of Arabic and English Terms which have been
developed for teaching and learning Islamic law. We suggest that prior to
working with this document, readers look at the companion manuals
Approaches to Teaching and Learning of Islamic Law: Sharing some national
and international Perspectives and Course Manual on Sources of Islamic
Law.
At the date of writing, few higher education institutions in the UK offer Islamic
Law courses. Where they do exist they are often short or elective courses,
offered as part of degrees in law or in Islamic Studies. One aim of this module
is to encourage more teachers to take up the challenge of teaching Islamic
Law. As part of a course on Islamic Studies it is crucial that a student has an
understanding of Islamic civilisation, encompassing as it does history,
theology, philosophy, political thought and sociology. For “regular” law
students the study of Islamic law has many benefits. It equips the student with
the skill of comparative analysis. For prospective 21st century practitioners a
working knowledge of the legal norms of the Muslim population is useful in
contextualising their engagement with any area of law, be it family,
immigration, contract, finance or crime.
4|Page
The aim of this course is to enable:
an understanding of and engagement with the theoretical discourse
regarding Islamic law
an understanding of the development of the principal sources of
Islamic law in the area of family rights and their incorporation into
state legislation
a critical and context-based analysis of issues relating to legal reform
in the Muslim world, identifying principles of Islamic family law in the
legislation of various Muslim countries covered in the module
an examination of the application of Islamic family law in diasporic
communities using the United Kingdom as a case study
In Muslim jurisdictions by contrast, Islamic law courses form part of the
compulsory offerings at any law school. Often based on the school of
jurisprudence locally prevailing, Islamic law is in these settings all too
frequently presented in a sterile, descriptive form. We believe that the need
for a teaching and learning resource responding to the needs of
constituencies, seeking a critical engagement with the subject cannot be
overstated. If contemporary lawyers of the Muslim world are to effectively
grapple with the challenge of developing and adapting Islamic law in the
future, a comprehensive, inclusive and innovative approach must be
encouraged.
This manual therefore attempts to contribute towards filling the gaps in both
Muslim and non-Muslim jurisdictions.
Teaching Methods
This introductory course on Islamic family law has three distinct components.
It begins with an overview of the sources and principles of Islamic family law,
5|Page
before going on to examine in more detail the key issues of marriage, divorce
and children. Finally, students will examine the codification of family law under
various law reform initiatives in the Muslim world at different historical
moments and eras, and consider the position of Muslims living in the
contemporary diaspora. In our view all of these components are essential,
firstly to give students a clear grasp of the core principles of Islamic family
law, and secondly to set that understanding in a contemporary context.
The teaching and learning process in Islamic family law must therefore begin
with an understanding of the sources of Islamic law and how these are
applied in developing a coherent legal formulation on a particular topic. On
certain subjects, for instance divorce, there is a wealth of primary source
material; in other cases, for instance adoption, there is very little. In each case
the original sources of Islamic family law have been supplemented and
developed over fourteen centuries of legal thinking. Apprehending the
diversity of opinion that results from this is the first hurdle faced by any
prospective student of Islamic family law. The law student who takes this
course, and is used to the certainty and clarity of „black letter‟ family law, must
quickly get used to the fact that in the Islamic context, what constitutes a „legal
norm‟ is open to a variety of possible interpretations and outcomes. The
reading and assessments in this manual are designed to reflect that plurality
of legal opinion and practice.
This manual is designed to be flexible. The proposed syllabus is designed
primarily as a half-module that may be delivered over a teaching term of ten
weeks, but it can be easily expanded to a full module delivered over two terms
or more. Each topic covered includes a suggested lecture structure, at least
one seminar subject, recommended reading lists and summative
assessments.
As a ten week course we would recommend delivery of one two-hour lecture
every week, supplemented by a small group seminar every fortnight.
6|Page
The lectures are necessarily fact based, but should also be used to introduce
the students to themes and issues that will require further exploration in the
seminars. We have tried to include a wide range of readings on each topic
which reflect the multifaceted nature of Islamic legal thought, and it is
intended that the breadth of the discourse on each topic be introduced in the
lectures. This will give students a solid factual foundation upon which to base
their own work in the seminars.
In a subject such as Islamic law, small group teaching acquires added
significance. Students are able to pose questions and familiarise themselves
with the „culture‟ of the subject, its line of argumentation and understanding of
complex concepts. In small groups students can be expected to engage with
the theoretical discourse on any given subject. Alternatively the session could
be given over to an in-depth study of one piece of primary source material, for
instance one verse of the Qur‟an, its interpretation and context. We hope that
the course outline and materials are flexible enough to allow teachers to
modify the themes covered depending on whether the students are either
undergraduate or postgraduate, or from non-Muslim or Muslim jurisdictions.
For teachers who wish to extend the course without expanding on the core
syllabus, we would suggest setting a supervised research project. For
instance, students could be given the opportunity to discuss, evaluate and
analyse case studies on law reform in the Muslim world, or to investigate the
impact of Islamic family law on Muslim diasporic communities in Europe, the
USA or Canada.
Learning Arabic
ensure students bring the Glossary to class
write down any Arabic terms used and provide a translation
get students to repeat the word
ask for a volunteer to write down each new word during a session
revise the words at the beginning of the next class
7|Page
When delivering the module to non-native Arab speakers and/or non-Muslims
who are not familiar with Arabic terminology, it is a good idea to have students
bring a copy of the glossary accompanying this manual to class. An exercise
we have found to be particularly valuable is to ask students to repeat every
Arabic word introduced during the course of the lecture. The lecturer starts by
writing the word on the board with its definition, says it slowly, and asks
students to repeat it at least three times. Thereafter, one student volunteer
keeps a list of all new Arabic words used in the lecture that day. The following
week, the lecture can begin by repeating and revising the words learnt the
previous week. This becomes quite a fun „game‟ and students taking this
course have counted 103 Arabic words at the end of term and are proud of
their new found skills in Arabic and no doubt sharing them with friends and
colleagues.
The course does however rely on English language scholarship and English
translations of the primary sources of Islamic law i.e., the Quran and Hadith.
No prior knowledge of Islamic law or Arabic is required.
Course Outline
This manual covers six central topics, which may be taught over a ten week
term or expanded as appropriate (see above):
1. Historical Overview and Sources of Islamic Law
2. Marriage
3. Dissolution of Marriage
4. Parents and Children
5. Law Reform in the Muslim World
6. Application of Islamic Family Law in Diasporic Communities
8|Page
Assessment methods
In keeping with the challenging nature of the course, we do not recommend
simple essay type questions year in and year out. Each year we have set
new and challenging research projects for our students, providing them with
an opportunity to apply their skills in a more interesting and innovative
manner, and we hope that the seminar structures provided reflect this. The
manual has adopted a "law in context" methodology, which aims to address
the demands of a growing number of students, both Muslim and non-Muslim,
and to enable them to acquire a working knowledge and expertise in Islamic
law. Students should be encouraged at all stages to consider the relevance of
what they are learning to their future practice or to contemporary legal
developments. It is for this reason that in addition to the seminars and essays,
we have also suggested a formative assessment that can run in conjunction
with the course, the details of which can be found in Chapter 6. Students are
required to identify a Muslim respondent whom they can consult briefly each
week on the topics they are covering in class. This work leads to a written
piece in which students can consider Islamic law as it applies in the diaspora,
in light of their own primary research material.
For a one-term course, we recommend assessment either by a two hour
examination and an assessed research piece of 2,500 words, or a single
supervised assessment of 5,000 words.
Materials
The main textbook that we would recommend is Pearl, D. & Menski, W.
(1998) Muslim Family Law (3rd edition) London: Sweet & Maxwell. In addition,
we have produced a list of recommended readings for each topic. In practice,
we make sure that these texts are available in the library, or produce copied
resource packs for the students. For a more detailed bibliography of Islamic
family law readers are referred to the companion manual Islamic law
Bibliography.
9|Page
Chapter One
Historical Overview and Sources of Islamic Law
The first part of the course is devoted to providing an overview of the early
development of Islamic law and the emergence of various schools of juristic
thought in this legal tradition. Knowledge of the formative and classical
periods of Islamic Law, set in an historical context, is a basic tool for the
understanding of contemporary themes in Islamic Law. Students from nonMuslim jurisdictions may be unlikely to have much knowledge of Islam or of
the development of Islamic thought. Students in Muslim jurisdictions may
have some knowledge of earlier Islamic periods, but may not appreciate the
significance of this period for the crystallisation of themes in Islamic Family
Law. We therefore recommend that these sessions are adapted accordingly.
A more detailed treatment of the subject can be found in the companion
Course Manual on Sources of Islamic Law. We recommend teaching this
module in two lectures and two seminars.
The aims and objectives are to:
set the formation and development of Islamic Law in an historical
context
give students an understanding of the core sources of Islamic law
illustrate the plurality of thought, custom and application of law within
Muslim communities
introduce students to the critical discourse on this subject
Lectures
The first lecture should provide an introduction to the first core sources of
Islamic law: the Qur‟an and the sunna. We have found it helpful to set the
scene for the Prophet Muhammad‟s revelation by outlining the historical
context of the pre-Islamic Middle East and asking students to consider the
10 | P a g e
possible significance for later legal developments of the competing traditions
in existence at that time. The lecture can then go on to provide an introduction
to the Qur‟an and its „legal‟ content. It may be helpful at this stage to discuss
how the text came to be ordered in the form we now see it, and point out that
there are many translations and interpretations of the text. Follow this with a
discussion on the significance of the sunna of the Prophet, hadith and the
concept of isnad. Direct students to the fierce theological, political and legal
debate that has resulted from the use of hadith.
A good way to illustrate the diverse influences on the early development of
Islamic law is to show students a map of the Middle East and clearly mark
Mecca. Ask the students to identify the dominant political, philosophical and
religious forces in existence at the time of the Prophet and the early Islamic
Caliphates. Draw attention to the fact that the Middle East was not a monolithic
culture and ask students to consider how thought in the early Islamic empire
would have been influenced by the conquests.
This first lecture should also be used to set out the key doctrinal differences
between the two principal divergent movements in Islam, namely, Shi‟ism and
Sunnism.
Against this contextual background the course can progress in lecture two
towards a discussion on the remaining sources of Islamic law: the concept of
‘ijma, and the use of qiyas and ijtihad. This will introduce students to the
formation of the madhabs and the tutor can begin identifying differences in the
jurisprudence of the four Sunni schools, namely Hanafi, Shafi‟i, Maliki and
Hanbali. If the course provider intends to also cover Shi‟a jurisprudence, there
should also be an introduction to the three main Shi‟a schools, namely, Athna
Asharia, Zaidya and Ismailia. An important point to bear in mind in the
teaching and learning of Islamic law is the fact that the division of Muslims into
Shia and Sunni impacts heavily on the understanding of the sources of
Islamic law by both sects and the consequent development of jurisprudence.
It may be helpful at this stage to consider concrete examples of the
differences in interpretation that have arisen, and to set them in their historical
11 | P a g e
context. For instance, why do Shia and Sunni laws of inheritance give
different shares to daughters in the absence of a male offspring? Why do
Sunni schools of juristic thought require the presence of witnesses for a valid
contract of marriage whereas Shia jurists consider it optional? An exploration
of these differences can lead to a discussion on the development of ijtihad, as
well as other juristic techniques such as talfiq and takhayyur.
Seminars
This topic can be covered in one or two seminars, depending on whether or
not the students are familiar with Islam and its development. This time should
be used to encourage students to engage critically with the information
provided in the lectures and reading. Here are two suggested seminar
structures.
Seminar I: the hadith and sunna
This is fertile ground. When considering the hadith, students are at once
learning about a core source of law, whilst at the same time learning to
identify points of difference between the four madhabs, and engaging with the
critical discourse in the texts. Initiate the discussion by asking for comments
on the following quotation from Abbott (1967):
Oral and written transmission went hand in hand almost from the
start; the traditions of Muhammad as transmitted by his
Companions and their Successors were, as a rule, scrupulously
scrutinized at each step of the transmission, and that the so-called
phenomenal growth of Tradition in the second and third centuries
of Islam was not primarily growth of content, so far as the hadith of
Muhammad and the hadith of the Companions are concerned, but
represents largely the progressive increase of parallel and multiple
chains of transmission.
N. Abbott
Studies in Arabic Literary Papyri, Volume II (Qur'anic Commentary & Tradition)
University Of Chicago Press, p. 2.
12 | P a g e
The seminar should include:
a discussion on the main points of difference between the four schools
of Sunni juristic thought in Islam, with particular reference to their
respective positions on hadith as a source of Islamic law
an examination hadith and orientalism. Ask students to evaluate the
views of certain European scholars on the nature, scope and legitimacy
of hadith as a source of Islamic law
students should be asked to identify the key features of the classical
and modern theory on hadith literature
Seminar II: ijtihad
A well established examination question forms the basis of this seminar: “what
factors led to the (contested) belief that the doors of ijtihad were closed since
the 4th century hijra or 10th century AD?”
In tackling this subject in detail, students can achieve a greater understanding
of the “fifth source” of Islamic Law and why it continues to produce
controversy. Begin with this definition of ijtihad provided by Kamali (1989):
Ijtihad means striving or self-exertion by the mujtahid in deriving the
rules of Shariah on particular issues from the sources. Normally
such rules are not self-evident in the sources and their formulation
necessitates a certain amount of effort on the part of the mujtahid.
Since the divine revelation has come to an end with the demise of
the Prophet, ijtihad remains the main instrument of interpreting the
divine message and relating it to the changing conditions of the
Muslim community.
Muhammad Hashim Kamali
“Source, Nature and Objectives of Shariah”
The Islamic Quarterly (London) 33: 223
13 | P a g e
Students should be asked to identify the rules of undertaking ijtihad. Who can
undertake ijtihad? What are the qualifications of a mujtahid?
The discussion should then progress to an analysis of whether in fact the door
did ever close on ijtihad. What evidence is there that scholars continued to
use ijtihad? What are the difficulties of making ijtihad in the contemporary
world? Is any reformist agenda in contemporary Islam dependent upon the
use of ijtihad?
Assessment: Essay Question
What are the difficulties of making ijtihad in the contemporary world? Use the
discussion and debate among contemporary Muslim scholars on the issue of
organ donations and transplantation.
Reading
The readings are overlapping and repetitive in the sense that they all provide
an historical backdrop to the sources of Islamic law and it‟s classification into
primary and secondary sources and so on. The reason for suggesting the
reading list below is to provide materials from a range of perspectives and
authors belonging to „western‟ and „non-western‟ academia and knowledge
systems.
Core texts
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet &
Maxwell pp. 3-18.
N.J.Coulson, A History of Islamic Law (1964) Edinburgh: Edinburgh University Press
pp. 9-20
Taha J. al-Alwani, “The Crisis in Fiqh and the Methodology of Ijtihad” (1991) Vol. 8
The American Journal of Islamic Social Sciences pp. 317-337.
M.Z.Siddiqi, Hadith Literature Its Origin, Development and Special Features (1993)
Cambridge: The Islamic Text Society
14 | P a g e
W. B. Hallaq, “Ifta‟ and Ijtihad in Sunni Legal Theory: A Developmental Account” in
M.K.Masud, B. Messck & D. Powers (eds.) Islamic Legal Interpretation. Muftis and
Their Fatwas (1996) Cambridge: Harvard University Press pp. 33-43.
Supplementary reading
H.R.Kusha, The Sacred Law of Islam (2002) Aldershot:Dartmouth/Ashgate pp. 1350; 51-79
M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD
Publishers pp. i-xxii
F. Rehman, Islam 2nd edition (1979) Chicago: The University of Chicago Press pp.
30-42; pp. 68-84
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource
Book (2002) London: Zed Books pp.1-21
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford
University Press pp. 1-39
J. Burton, The Sources of Islamic Law. Islamic Theories of Abrogation (1990)
Edinburgh: Edinburgh University Press pp. 1-14.
15 | P a g e
Chapter Two
Marriage
This part of the course will discuss the institution of marriage in Islam, its
contractual nature and the requisites of a valid marriage, such as dower
(mahr). It invariably generates a lot of interest in class and students find it
fascinating to read verses from the Qur’an regarding marriage, polygamy and
so on. For teachers in non-Muslim jurisdictions addressing a predominantly
non-Muslim audience, it may be a good idea to spend some time on the main
concepts from a comparative perspective and to place the discussion into
context.
The aims and objectives of this session are to:
give students a clear grasp of the requirements for a valid marriage
contract in Islamic law
encourage students to look at the law of marriage from a comparative
perspective
look at the influence of customary practice
engage with issues such as polygamy and consent
ask who can contract a valid Islamic marriage?
Lectures
The starting point for this topic is the fact that marriage is a civil contract in
Islam and that both parties are at liberty to include mutually acceptable
stipulations in it. At the same time, the plural legalities operating within family
law also require consideration and there needs to be awareness amongst
students of how the cultural and social norms tend to overshadow the bare
legal requirements of the contractual nature of marriage in the Islamic legal
tradition. As an example, we suggest use of the Saima Waheed case to
16 | P a g e
highlight the complex interplay between law and social norms and the role of
courts in adjudicating upon these issues.
Ask the students to investigate/consider how many Muslims they know
have included stipulations in their marriages.
If they are not being used, why not? Are they restricting or expanding
the rights of the parties?
Secondly, discuss and analyse the concept and role, both legally and socially,
of the marriage guardian or wali.
How does this fit into the Muslim social context where there is a „nikah
father/brother‟ or representative who seeks consent of the bride and
then represents her in the actual nikah ceremony?
Distinguish this from the legal right of a Muslim male and female to
freely consent to marriage.
A third point for exploration in these sessions may be Mahr or dower as it is
translated in English language writings on the subject. This translation often
confuses students who tend to mix up the concept with dowry. Consider the
differences between the two terms in law and in practice. Both are in law the
sole property of the woman. Is it always so in practice?
Recognise the subtle and nuanced implications of similar sounding
names
Contextualise some of the terms and relate these to contemporary
terminology and usage
Highlight the difference between dower and dowry, or mahr in Arabic,
is the sum of money or property that the husband in a Muslim contract
undertakes to give to his wife and is her sole property
Dowry, jehaiz in South Asian languages or trousseau in French, is the
sum of money or property given to the woman by her natal family as
17 | P a g e
her wedding gift and includes household goods, her personal effects
etc.
Finally consider those whom Muslims are not permitted to marry, and where
the right to marry may be restricted by legal requirements. When discussing
prohibited degrees of relationship in marriage, the term „fosterage‟ needs to
be clarified and explained from a comparative perspective. „Fostering‟ has a
legal significance in the UK and other western jurisdictions as meaning the
taking up of parenting responsibilities for a child or children by persons other
than the biological parents. In the Islamic legal tradition, where a woman
breast feeds a child other than her own biological offspring she becomes the
foster mother, her husband the foster father and children, foster siblings. The
relationship created is akin to a biological one insofar as it places the fostered
child in a similar position in relation to prohibition to inter marry as if the child
were actually a biological child of the „foster‟ mother/father. A lively class
discussion is likely to ensue leading to challenging questions regarding the
application of related principles of Islamic law, including the right of the foster
child to inherit from the foster parents and so on.
Seminars
Here are two suggested seminar structures, both of which require the
students to examine the primary source materials.
Seminar I: Consent
This topic covers two important issues in respect of a contemporary Muslim
marriage: Who can validly contract a Muslim marriage, and whether a
marriage is rendered invalid by a lack of consent.
In the first part of the seminar, remind the students of the elements of a valid
contract of marriage and focus in particular on the concept of wilaya and the
debate generated by the Saima Waheed case, which provides the reading for
the seminar: Abdul Waheed v Asma Jehangir (PLD 1997 Lah 331).
18 | P a g e
Ask the following questions:
Who are parties to the marriage contract in Islam?
Is the guardian a party to the marriage contract?
What is the purpose of the consent of the guardian? Is it a legal
requirement impacting on the validity of the marriage?
Why is the consent of the guardian not required at the time of
dissolution of the marriage?
What are the legal consequences where one or both of the parties to
the marriage do not consent?
How is consent given, implied or assumed?
Ask students to consider the distinction between an „arranged‟ and „forced‟
marriage and the difference in validating or invalidating a contract of marriage
on this basis. An arranged marriage can be perfectly consensual and in
accordance with the requirements of consent under Islamic law. A forced
marriage is no marriage in the eyes of Islamic law as there is lack of a basic
requirement i.e., consent. A short exercise in class may be to ask how one
would construct „consent to marriage‟.
Seminar 2: Polygamy
Ask students to consider Sura IV, verses 3 and 129 of the Qur‟an:
“If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them),
Then only one, or (a captive)
That your right hands possess.
That will be more suitable,
To prevent you
From doing injustice.”
[Sura IV, verse 3]
19 | P a g e
“ye shall not be able to deal in fairness and justice between two women
however much ye wish.”
[Sura IV, verse 129]
They should consider the context in which the verses were revealed and ask
whether they are context and time specific. Can a general rule allowing
polygamy be based on these verses? During the seminar, the students should
work in small groups to produce suggested drafts of a law based on these
verses.
Assessment: Essay Questions
1. “It is well-known that polygamy is a controversial issue in Islam. This is
not only so because of principled objections to polygamy as an
institution, but because the classical Muslim position on polygamy itself
is not as simple and uncomplicated as is often assumed.” (Pearl &
Menski:1998: 237)
In light of the Qur‟anic verses on polygamy, would you agree that “in
Islam, monogamy is the rule while polygamy is only an exception?”
(Bharatiya: 1996: 74).
2. Hanadi is a 19 year old girl living in Pakistan with her mother and
father. Her family are wealthy. She meets a 25 year old teacher named
Shafik and wishes to marry him. Her father refuses to consent to the
marriage and Hanadi leaves her parents home and decided to marry
Shafik anyway. She approaches the local imam who agrees to conduct
the nikah ceremony for them. Shafik is not very wealthy and cannot
afford to give Hanadi a mahr. Hanadi tells him that she does not want a
mahr. The imam insists on a small mahr and so Shafik agrees to pay a
nominal sum amounting to £50. The nikah is concluded and Hanadi
and Shafik marry.
Question: Is this nikah contract valid according to the relevant criteria
of the school of thought? In particular, consider the requirement for a
Wali and the need for a mahr.
20 | P a g e
Reading
The reading for this topic aims to give students a basic understanding of the
contract of marriage in Islam whilst exposing students to the reality that within
the Islamic legal tradition, there is a range of opinions and approaches
towards family law, from the most conservative to the very progressive and
contemporary.
Core texts
S. S. Ali, Is an Adult Muslim Woman sui Juris? Some Reflections on the Concept of
„Consent in Marriage‟ without a Wali with particular reference to the Saima Waheed
case, 3 Yearbook of Islamic and Middle Eastern Law 1996, 156-174
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford
University Press
A. Al-Hibri, “Marriage Laws in Muslim Countries: A Comparative Study of Certain
Egyptian, Syrian, Morrocan, and Tunisian Marriage Laws” (1992) Vol. 4 International
Review of Comparative Public Policy pp. 227-24.
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet &
Maxwell, Chapters 6, 7 and 8
Supplementary reading
S. S. Ali, Women's Human Rights in Islam: Towards a Theoretical Framework, 4
Yearbook of Islamic and Middle Eastern Law 1998, 117-152
S. S. Ali, “Marriage, Dower and Divorce: Superior Courts and Case Law in Pakistan”
in F. Shaheed et al (eds.,) Shaping Women‟s Lives Laws, Practices and Strategies in
Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 107-142. Co-authored with
R.Naz.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource
Book (2002) London: Zed Books.
M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD
Publishers
Z. Mir-Hosseini, Marriage on Trial. A Study of Islamic Family Law (2000) London: I.B.
Tauris.
21 | P a g e
J. J. Nasir, The Islamic law of Personal Status (1990) London: Graham & Trotman.
22 | P a g e
Chapter Three
Dissolution of Marriage
This topic explores the concept of dissolution of marriage in Islamic law
including talaq, khul’ and mubarat. As indicated in earlier sections, it is
important to place the concepts within the wider normative framework of the
Islamic legal tradition. It is suggested that the student be introduced to
Qur’anic verses on talaq, and other forms of dissolution of marriage and to
extrapolate general principles on the subject from these readings. Bear in
mind that we will come back to these verses and principles in a later part of
the course, particularly in Chapter Five, which examines Law Reform in the
Muslim World and Chapter Six, which considers the Application of Islamic
Law in Diasporic Communities.
The aims and objectives of this session are to:
provide students with a sound understanding of the Qur’anic law on
dissolution of marriage
encourage students to engage with wider cultural, sociological and
political issues surrounding the dissolution of marriage for Muslims
today
introduce students to ideas about how such Qur’anic verses might be
codified in modern legal systems
Lecture
The most prevalent form of the dissolution of marriage is the talaq. Talaq and
its legal implications are an important and controversial aspect of Islamic
family law and one that we recommend is dealt with in some detail in view of
its practical impact for Muslim marriage and divorce globally. The popular
understanding and viewpoint of a vast majority of Sunni Hanafi Muslims
23 | P a g e
regarding pronouncement of talaq is that pronouncing the word “talaq” three
times in a row has the consequence of an irrevocable dissolution of marriage.
This is also the understanding of „Islamic divorce‟ for many non-Muslims. The
lecture should therefore begin with an explanation of the different modes of
pronouncing talaq, the ahsan, hasan and bidda forms of the pronouncement
and their legal roots and application. From here the lecture can progress to
consider how and why an increasing number of Muslims and Muslim
governments have taken issue with the summary mode of divorce, and how
laws in these jurisdictions have declared this infamous „triple talaq‟ illegal
under Islamic law. Why did the triple talaq emerge as a possible avenue of
dissolving marriage, why has it continued to date and on what grounds is it
being prohibited in contemporary legislation of Muslim jurisdictions, is a
question for every student of Islamic family law. As a comparison, it may be
useful to look at Shia jurisprudence and reasoning behind the illegality of the
triple talaq in that sect of Islam.
The lecture should also cover the alternative modes of dissolution of
marriage, khul’ and mubarat, explaining their legal origin and their application.
Seminar
In the small group session the students should be encouraged to debate the
comparable legal positioning of talaq, khul’ and mubarat.
Some questions arising include the following:
is khul‟ comparable and „legally‟ „equal‟ to talaq; within the Qur’anic
worldview; within hadith literature and within the practice of Muslims
when does a divorce, either by talaq, khul‟ or mubarat become legally
operative and why
The literature on these issues, and indeed the everyday practice of Muslim
communities across the world, presents a variety of viewpoints on each of
these questions. These disparate opinions and approaches towards the
dissolution of marriage are a productive starting point for seminar discussions,
24 | P a g e
but can also be a challenge for the tutor. It is not possible to resolve these
questions in a class on Islamic family law, but the teaching and learning
process ought to highlight controversies and potential debates which will be a
useful grounding for the students when they later come to learn how Islamic
marriages are dissolved in contemporary society.
Assessment: Research Project
Ask the students to consider in detail the three modes of talaq: talaq al-ahsan,
talaq al-hasan and talaq al-bidda. Encourage students to dig out the historical
antecedents of this development. Can we say that talaq al-bidda (the triple
talaq) is „legally good/sound/valid‟ but morally/ethically/religiously „bad‟? How
do we „square‟ this with the verses on dissolution in the Qur‟an? Consider the
legality of each mode in contemporary Islamic jurisdictions.
Assessment: Problem Question
Read the following case study, choose one of the four Sunni juristic schools of
thought and consider whether the marriage would be validly dissolved or not.
If not, what is the procedure that needs to be followed?
Anita and Amir have been married for two months. They get into a big
argument and Amir is furious and decides to end the marriage with Anita. He
pronounces the triple talaq and tells her that they are divorced.
Assessment: Drafting Skills
Ask students to develop a draft law on the dissolution of marriage based on
the relevant Qur‟anic verses. Ask students to consider the following:
what was the historical context of these verses and how should they be
viewed in contemporary society?
how should dissolution (talaq, khul‟, mubara‟t, faskh) be categorised
under Islamic and codified law?
25 | P a g e
what are the legal, as opposed to moral/ethical requirements of a valid
dissolution?
is it possible to incorporate the moral/ethical voice of the Qur‟an into
statute/black letter law?
Readings
Core texts
S. S. Ali, “Marriage, Dower and Divorce: Superior Courts and Case Law in Pakistan”
in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in
Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 107-142. Co-authored with
R.Naz.
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet &
Maxwell. Chapter 9.
J. Rehman, “The Sharia, Islamic Family Laws and International Human Rights Law:
Examining the theory and practice of Polygamy and Talaq” (2007) International
Journal of Law, Policy and the Family, pp 1–20.
Supplementary reading
S. S. Ali, Women's Human Rights in Islam: Towards a Theoretical framework, 4
Yearbook of Islamic and Middle Eastern Law 1998, 117-152
S. S. Ali, “The Law of Inheritance and Reported Case Law Relating to Women” in F.
Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in
Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 163-180. Co-authored with K.
Arif.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource
Book (2002) London: Zed Books.
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford
University Press
A. Al-Hibri, “Marriage Laws in Muslim Countries: A Comparative Study of Certain
Egyptian, Syrian, Morrocan, and Tunisian Marriage Laws” (1992) Vol. 4 International
Review of Comparative Public Policy pp. 227-24.
M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD
Publishers
26 | P a g e
Z. Mir-Hosseini, Marriage on Trial. A Study of Islamic Family Law (2000) London: I.B.
Tauris.
J. J. Nasir, The Islamic law of Personal Status (1990) London: Graham & Trotman
27 | P a g e
Chapter Four
Parents and Children
Following on from the discussion regarding marriage and modes of
dissolution, we enter into an area of law that regulates the relationship
between parents and children, the rights of children to an identity, support and
maintenance and the right to inherit from parents.
Subjects that should be covered in this section are:
the status of children at birth (legitimacy in the context of the legality of
the marriage of parents)
custody (Hizanat)
guardianship (Wilayat)
adoption and the concept of Kafalah
We suggest covering this subject in one lecture and one seminar.
Lecture
The first point to make in this session is the important link between marriage
and legitimacy of children. Legitimacy is established either by the birth of a
child in a marriage which is valid (sahih) or irregular (fasid), but not one that is
void (batil). Alternatively, it may be established through the doctrine of
acknowledgement (iqrar). Legitimacy, or the right to establish parentage, is
not only the framework in which the rights of the child are placed, but it is a
significant indicator of the wider cultural and religious practices under
discussion in the rest of the course.
28 | P a g e
Ask the students to consider and debate the following passage from Pearl &
Menksi:
“Illegitimate birth is severely stigmatised in Muslim law, inter alia,
because it threatens a dominant principle in traditional Muslim law;
that of purity of the blood line through males. Concern over
legitimacy, as the institution of the idda’ period confirms, seeks to
avoid confusion over paternity, but also reflects a desire to uphold
proper sexual morels in society and to avoid illicit sexual relations
(zina).”
Another important point linked to the question of legitimacy is the period of
gestation. Pearl and Menski argue that perhaps in view of the drastic
consequences attendant upon individuals who are not considered legitimate,
all Sunni schools recognise gestation periods well beyond the medically
proven maximum. Tutors can well expect a robust discussion on this issue in
view of the capacity of medical science to ascertain maximum gestation
period of a foetus. Hanafis concede a gestation period of up to two years
between conception and birth of a child. Hanbali and Shafi‟i jurists accept
gestation of up to four years with Malikis up to five years. There has been
much debate with the Islamic legal discourse about these „classical‟ limits. For
instance, Nasir concludes that in practice it has been laid down as one lunar
year. Some discussion may be useful here regarding the concept of the
„sleeping foetus‟.
Moving on from the issue of paternity, the lecture should cover the law relating
to children in the event of dissolution of the parents‟ marriage. The starting
point for this discussion is the basic distinction between custody (hizanat) and
guardianship (wilaya). Custody means the care and control of the child, but
under the doctrine of hizanat the rights and obligations of the mother (and
persons who might take their place) are also delineated. Guardianship on the
other hand, focuses on legal rights and obligations of the child‟s father and his
representatives. In practice, the „best interests of the child‟ often blurs the
29 | P a g e
distinction between the two concepts and this will be explored further in the
seminar. All schools of thought (Sunni and Shia alike), agree that the mother
has the first claim to the custody of her infant, but a difference of opinion
exists as to whom should have custody in the absence of the mother as well
as when the period of custody ends.
Direct students to consider:
how the different schools have arrived at their own age limits of
custody
the practicality of the Shafi‟i doctrine of „discretion‟
how the different age limits are incorporated into contemporary
legislation and practice
whether the age limits are mandatory or discretionary
the role of the court in determining custody and guardianship – how
much discretion does a judge have?
whether the parties can forfeit their role and in what circumstances
custody or guardianship can be awarded
The last controversial subject that can be dealt with in the lecture is adoption.
The generally held opinion regarding adoption, amongst Muslims and nonMuslims alike, is that adoption is not allowed in Islam and Islamic law. In
practice however, various formal and informal devices are employed to
support and take account of the welfare of orphaned or destitute children, as
well as the interests of childless couples, who may seek to treat a child as
their own. The doctrine of kafalah or nurturing and caring for a child other than
one‟s biological offspring is an example of a practice akin to adoption.
Likewise, the relationship of fosterage (arising out of breastfeeding a child)
creates a prohibition of marriage amongst „foster‟ relations, including foster
parents, foster siblings etc. Students should be referred to the Qur‟anic verses
on the subject, and engage with the context and purpose of the prohibition:
30 | P a g e
"Allah has not made
For any man two hearts
In his (one) body: Nor has
He made your wives whom ye
Divorce by Zihar your mothers.
Nor has He made your
Adopted sons your sons,
Such is only your (manner of) speech
By your mouths. But Allah
Tells (you) the truth, and He
Shows the (right) way.
Call them by (the names)
Of their fathers: that is
More just in sight of Allah,
But if ye know not
Their father's (names, call them)
Your brothers in faith,
Or your Maulas,
But there is no blame on you
If ye make
A mistake therein".
Surah Ahzab (The Clans)
Chapter 33, verses 4 and 5
Seminar
Provide the students with a copy of the House of Lords decision in EM
(Lebanon) v SSHD [2008] UKHL 64. This was a case concerning the removal
from the UK of a Lebanese woman and her child. The Appellant claimed that
if returned to Lebanon she would lose custody of her child to her ex-husband,
and appealed on the basis that this would be a breach of her right to family life
protected by Article 8 of the ECHR. Ask the students to critically evaluate the
findings of the Lords, based on the “expert evidence” that was before them.
Some of the questions that should come up for discussion and debate
in class include the following:
Is Lord Hope correct when he states that any attempt by the mother to
retain custody would “be bound to fail”? [paragraph 5]
31 | P a g e
Is Lord Bingham correct when he states that the sharia court would
have “no discretion” in determining which parent has custody of the
child? [paragraph 24]
What considerations would a sharia court take into account in
determining where the child should live?
What was the relevance of the father‟s past conduct?
Could the sharia court take into account the “best interests” of the
child? Is “best interests” an objective or subjective test?
The dicta of the Lords in this case also makes a good starting point for a wider
discussion of the application of “universal” human rights and discrimination in
the context of Islamic family law.
Assessment: Essay Question
“Traditional Islamic law does not appear to allow formal adoption
because it refuses to accept the legal fiction which an adoption
creates, namely that an adopted child can become an equal to a
blood relative of the adopting father.”
Pearl & Menski, p. 408
Analyse this statement in light of Qur‟anic verses and practice in the Muslim
world regarding adoption.
Some tips for students on how to address this question:
Read the Qur‟anic verses supposedly prohibiting adoption (The Clans,
Sura 33, verses 4 and 5)
Explore and understand their context
When and in response to what situation were these verses revealed?
What are the legal rules you are able to extrapolate from these
verses?
32 | P a g e
Is it pointing towards a blanket prohibition of the concept of adoption?
Define adoption as a western concept and then try to engage with it
from within the Islamic legal tradition.
What about the doctrine of kafalah, or looking after, nurturing and
caring for children not your biological offspring?
Look at the concept of laqeet or foundling and the duty to look after
them.
How would you construct rules regarding adoption on the basis of the
above explanation?
Reading
Core texts
S. S. Ali, “A Comparative Perspective of the United Nations Convention on Rights of
the Child and the Principles of Islamic Law. Law Reform and Children‟s Rights in
Muslim Jurisdictions” in S. Goonasekere (ed.) Protecting the World’s Children:
Impact of the UN Convention on the Rights of the Child in Diverse Legal Systems
(2007) Cambridge: Cambridge University Press pp. 142-208.
S. Ishaque, “Islamic principles on adoption: examining the impact of illegitimacy and
inheritance related concerns in context of a child‟s right to an identity” (2008) Vol. 22
International Journal of Law, Policy and the Family pp. 393-420.
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet &
Maxwell. Chapter 10.
S. S. Ali, “Custody and Guardianship: Case Law 1947-97” in F. Shaheed et al (eds.,)
Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, 1998) Lahore,
Pakistan: Shirkatgah, pp. 143-162. Co-authored with M.N. Azam.
S. S. Ali, “Rights of the Child under Islamic Law and Laws of Pakistan: A Thematic
Overview” (2006) Vol. 2 Journal of Islamic State Practices in International Law, pp.
1– 16.
33 | P a g e
Supplementary reading
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource
Book (2002) London: Zed Books.
M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD
Publishers
J. J. Nasir, The Islamic law of Personal Status (1990) London: Graham & Trotman.
34 | P a g e
Chapter Five
Law Reform in the Muslim World
Aims and Objectives
This part of the course draws upon the concepts and normative framework of
the earlier part of the course to analyse the extent to which these principles of
Islamic family law find a place in the legislation of contemporary Muslim
jurisdictions. It uses examples of law reform from South-Asian jurisdictions
including the following:
The Child Marriages Restraint Act 1929. This law is an example of a
„standard setting law‟ by the British colonial government to discourage
child marriages.
The Dissolution of Muslim Marriages Act 1939 (India, Pakistan and
Bangladesh). This law reflects the responsiveness on behalf of the
British colonial government and Muslims of British India to formulate a
law acknowledging Muslim women‟s rights to initiate dissolution of their
marriage on „Islamically‟ accepted grounds, but denied to them due to
their conflict with local customary practices.
The Muslim Family Laws Ordinance 1961 (Pakistan). This is an
example of „indigenous‟ local demands for family law reform including
banning polygamy, modifying rules of inheritance to include orphaned
grandchildren of predeceased sons/daughters and prohibiting the
infamous „triple talaq‟.
As an example of the Maghreb (North African region), the Moroccan
Family Code (Moudawana) of 2004 offers a fascinating example of law
reform in the contemporary Muslim world.
35 | P a g e
Lecture
The main aim of this lecture is to provide students with an opportunity to link
theoretical perspectives on Islamic law and its sources, to their application in
contemporary legislation and to develop their analytical skills. To this end, we
ask the following critical questions:
What are the merits and de-merits of codification of Islamic family law?
Is codification a useful mechanism for formalising Islamic family law, or
indeed, any field of the Islamic legal tradition?
Does codification lead to fossilisation of norms and rules, even
concepts; in particular within Islamic family law?
An interesting method of engaging students with the processes of law reform
in the Muslim world is to provide an historical and contextual overview. What
was the motivation to reform and codify, and what led to the inclusion and
exclusion of certain interpretative formulations within Islamic law when
legislating in this area. The Rashid Commission Report from Pakistan which
was the pre-cursor to the Muslim Family Laws Ordinance 1961 is one
example.
Tips for promoting discussion:
provide excerpts from the Rashid Commission recommending legally
abolishing polygamy in the then forthcoming family law.
Compare this to the actual provisions of the MFLO relating to
„restraining‟ rather than prohibition of polygamy.
On what basis is the MFLO „Islamic?‟; Who‟s views does it represent?
What would be the challenges confronted by law makers in further
codification/modification of these provisions?
36 | P a g e
Some landmarks in the evolution of codification of Islamic family
law:
First major redefinition of traditional Muslim law - Ottoman Empire in
the 19th century. These were attempts at codification of law.
The Tanzimat, as they were known, introduced a range of codified
laws. The form of these laws was European but there was some
attempt to integrate certain principles of Islamic criminal law.
The Majalla or The Civil Code of 1876 (Contract and tort of Hanafi
Sunni law) Majalla is important in that it represents the earliest example
of official promulgation of significant parts of the Shari’a by authority of
a modern state. It did not only draw upon Hanafi Sunni jurisprudence
but chose also to incorporate divergent views from the Hanafi
traditions. The Majalla as example of takhayyur.
Ottoman Law of Family Rights 1917 contained (limited) rights to
divorce by Muslim women, a reform based on the Maliki and Hanbali
doctrine on the subject.
The Turkish reforms as aspiration for other countries in the Muslim
world.
Juristic techniques of Muslim jurisprudence including Ijtihad, Takhayur,
Talfiq were used in the modern day legal reform in the Muslim world.
For instance: An adult Muslim woman‟s right to enter into marriage of
her own accord without intervention of her male guardian (a principle of
the Hanafi school), has been adopted by applying talfiq in jurisdictions
where the Hanafi School is not otherwise followed. Morocco, following
the Maliki School, used this to reform her Family Code.
The DMMA is another example where principles of four schools of
thought were merged together to arrive at a codified law. The
formulation is secular as it does not contain the Qur’an or Sunna
37 | P a g e
directly but Islamic principles of law and justice were invoked and used
as a justification for the said legal reform.
The MFLO drafted in light of Qur’anic verses. Registration of
marriages, procedure for divorce and the role of the arbitration council,
orphaned grandchild and inheritance, permission of existing wife in
polygamous marriages unions.
The 20th century as the century of law reform in the Muslim world.
Seminar
This session will concentrate on linking the theoretical concepts of Islamic
Law explored in the earlier part of the course to its practical application by
various Muslim jurisdictions through attempts to reform their family law. We
will use the Moroccan Family Code (Moudawana) adopted on February 5,
2004 as an example.
Read the text of the Moudawana
Pick up specific provisions of the Moudawana and indicate what juristic
technique, for example, talfiq, ijtihad and so on, has been used to
formulate that section of the law.
For instance, the Maliki school of thought (followed in Morocco)
requires the presence and consent of the wali (male guardian) of an
adult Muslim woman as a pre-requisite for a valid marriage. Yet, the
Moudawana departs from this principle.
Principles of international human rights law including children‟s and
women‟s rights to non-discrimination and equality, are invoked and
recalled as guiding principles in the Moudawana. This is done on the
basis of contractual obligations considered paramount in Islamic law
and as the country has ratified these human rights treaties, domestic
laws take this reality on board.
38 | P a g e
The Moroccan King‟s speech regarding the rationale and objective of
the reform is incorporated into the preamble of the Moudawana,
extracts from which are given below:
“Adopt a modern form of wording and remove degrading and debasing terms for
women.
Place the family under the joint responsibility of both spouses, given that „women
are men‟s sisters before the law‟ in keeping with the words of my ancestor the
Chosen Prophet Sidna Mohammed, Peace Be Upon Him, as reported, „Only an
honourable person dignifies women, and only a villainous one degrades them.‟
Entitle the woman who has come of age to tutelage as a right, and she may
exercise it according to her choice and interests, on the basis of an interpretation
of a holy verse stipulating that a woman cannot be compelled to marry against
her will: “…place not difficulties in the way of their marrying their husbands, if it is
agreed between them in kindness.‟ A woman may of her own free will delegate
tutelage to her father or a male relative.
Equality between women and men with respect to the minimum age for
marriage, which is now fixed at eighteen years for both, in accordance with
certain provisions of the Malekite School, and authorize the judge to reduce this
age only in justified cases, and further, equality between girls and boys under
custody who may choose their custodian at the age of fifteen.
Concerning polygamy, we took into consideration the commitment to the tolerant
principles of Islam in establishing justice, which the Almighty requires for
polygamy to take place, as it is plainly stated in the Holy Koran: He said '...and if
you fear that you cannot do justice (to so many) then one (only).' And since the
Almighty ruled out the possibility for men to do justice in this particular case, He
said: 'You will not be able to deal equally between (your) wives, however much
you wish (to do so),' and he thus made polygamy quasi impossible under Sharia
(religious law).
We further adhered to the distinguished wisdom of Islam in allowing men to
legitimately take a second wife, but only under compelling circumstances and
stringent restrictions, with the judge‟s authorisation, instead of illegitimate
polygamy occurring if we prohibit it entirely.
From thence, polygamy shall be allowed only in the following circumstances and
according to the following legal conditions:
The judge shall not authorize polygamy unless he has verified the husband‟s
ability to guarantee equality with the first wife and her children in all areas of life,
and there is an objective and exceptional motive that justifies polygamy.
39 | P a g e
The woman has the right to stipulate a condition in the marriage contract by
which her husband will refrain from taking another wife, as Omar Ibn Al-Khattab,
may God be pleased with him, is quoted as saying: 'The intersection of rights is
in the conditions.' In the absence of such a condition, the first wife is summoned
to obtain her consent, and the second wife must also be notified and consent to
the fact that the husband is already married to another woman. Moreover, the
first wife has the right to petition for divorce for harm suffered.
As a token of our royal concern for our dear subjects residing abroad, marriage
procedures are to be simplified for them: the marriage contract is to be drawn up
in the presence of two Muslim witnesses and in accordance with the procedures
in effect in the country of residence, and then registered with the proper
Moroccan consular or judicial authorities, according to the Hadith: 'Seek ease,
not hardship.'
Make divorce, defined as the dissolution of marriage, a prerogative that may be
exercised as much by the husband as by the wife, in accordance with legal
conditions established for each party and under judicial supervision to control
and restrict the abusive arbitrary practices of the husband in exercising
repudiation, and this according to the rules established on the basis of the Hadith
by Prophet Mohammed, Peace Be Upon Him, „The most hateful to God among
all lawful things is divorce.‟ The new legislation also reinforces the mechanisms
for reconciliation and mediation both through the family and the judge. If the
husband has the right of repudiation, the wife may also avail herself of this right
through tamleek (assignation). In all cases, before repudiation may be
authorized it must be ascertained that the repudiated woman has received all of
her vested rights. A new procedure for repudiation has been established that
requires judicial permission, and the repudiation cannot be registered until all
vested rights owed to the wife and children have been paid in full by the
husband. Irregular pronouncements of repudiation by the husband shall not be
considered valid.
Expand the woman‟s right to file for divorce when the husband does not fulfil any
of the conditions stipulated in the marriage contract, or for harm caused to the
wife such as lack of financial support, abandonment, violence, and other harm, in
view of endorsing the general legal principle: „neither harm nor be harmed,‟ to
promote equality and equity between the two spouses. Another new provision
introduces of the right of divorce by mutual consent under judicial supervision.
Protect children‟s rights by inserting provisions of international conventions
ratified by Morocco into the Moudawana. Children‟s interests with respect to
custody are also guaranteed by awarding custody to the mother, then to the
father, then to the maternal grandmother. Should this prove impossible, the
judge will entrust custody to the most qualified relative. Furthermore, the child
under custody is guaranteed suitable accommodation, separate from the other
financial maintenance obligations, and cases concerning maintenance
obligations must be settled swiftly within a one-month time limit.
Protect the child‟s right to acknowledgement of paternity in the event the
marriage has not been officially registered for reasons of force majeure, where
the court examines the evidence presented to prove filiation, and establish a five
year time limit for settling outstanding cases in this regard to put an end to the
suffering endured by children in this situation.
40 | P a g e
Allow the granddaughter and grandson on the daughter‟s side the right to inherit
from their grandfather, just as the grandchildren on the son‟s side, in keeping
with the principles of ijtihad (juridical reasoning) and justice in the compulsory
legacy.
Concerning the management of property acquired by the two spouses during
marriage: while confirming the principle of separate marital property, the bill
makes it possible for the couple to agree, in a document separate from the
marriage contract, on a framework for managing assets acquired during
marriage. In case of disagreement, the judge shall resort to general rules of
evidence to assess each spouse‟s contribution to the development of the family
capital.
Ladies and gentlemen, honourable Members of Parliament,
The reforms, of which we cited the most important, should not be considered as
a victory of one group over another, but rather constitute achievements for all
Moroccans, and we took care to ensure that they were consistent with the
following principles and references:
I cannot, as Commander of the Faithful, permit what God has forbidden and
forbid what God has permitted.
Adopt the tolerant principles of Islam in advocating human dignity, and
enhancing justice, equality and good amicable social relations, and with the
cohesiveness of the Malekite School as well as ijtihad (juridical reasoning),
which makes Islam valid for any time and place, to implement a modern
Moudawana for the family, consistent with the spirit of our glorious religion.
Not consider the Moudawana as a law for the woman only, but a Moudawana for
the entire family - father, mother and children - and further ensure that this
Moudawana eliminates discrimination against women, protects the rights of
children and preserves men‟s dignity.”
Assessment Question:
Read the text of the Moudawana carefully. Identify specific provisions of this
law indicating which juristic techniques, for example, ijtihad, talfiq etc., have
been employed to arrive at that particular provision.
Core Reading
Buskins, L. „Recent Debates on Family Law Reform in Morocco, Islamic Law as
Politics in an Emerging Public Sphere‟, Islamic Law Society, Vol. 10, No. 1, Public
Debates on Family Law Reform Participants, Positions and Styles of Argumentation
in the 1990‟s (2003), pp 70-131.
41 | P a g e
Maddy-Weitzman, B. „Women, Islam, and the Moroccan State, The Struggle over the
Personal Status Law‟ in Middle East Journal, Vol. 59, No. 3, Democratization and
Civil Society (Summer 2005) pp 393-410.
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet &
Maxwell pp.68-83, 166-175, 228-236, 273-278, 382-398.
A A An Naim, “Sharia and positive legislation: is an Islamic state possible or viable?”
(1998-1999) Vol. 5 Yearbook of Islamic and Middle Eastern Law pp. 29-41
S.S. Ali, “Testing the Limits of Family Law Reform in Pakistan: A Critical Analysis of
Muslim Family Laws Ordinance 1961.” (2002) International Survey of Family Law:
Cambridge University Press pp.317-335.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource
Book (2002) London: Zed Books pp. 1-21
Supplementary Reading
S. S. Ali, “Using Law For Women in Pakistan” in Ann Stewart (ed.,) Gender, Law and
Justice, (2000) London: Blackstone, pp. 139-159.=
S. S. Ali, “A Critical Review of Family Laws in Pakistan: A Women‟s Perspective” in
R.Mehdi (ed.,) Women's Law in Legal Education and Practice in Pakistan: North
South Co-operation (1997) Copenhagen: Social Science Monographs. pp. 198-223.
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford
University Press
Z. Mir-Hosseini, Marriage on Trial. A Study of Islamic Family Law (2000) London: I B
Tauris.
C. Mallat & J. Connors (eds.,) Islamic Family Law (1990)London: Graham &
Trotman.
M. A. Mannan (ed.,) D. F. Mulla's Principles of Mahomedan Law (1995) Lahore: PLD
Publishers.
42 | P a g e
Chapter Six
Application of Islamic Family law to
Muslim Diasporic communities
This topic is complex and cannot easily be reduced into one session. In fact,
it could quite easily be expanded to comprise an entire module: see the
companion manual. Tutors will therefore need to condense or expand the
material in this chapter according to the time they have available. For the
purpose of this manual the material presented here is concerned primarily
with the application of Islamic Family Law to the diasporic communities in the
UK. Tutors in other jurisdictions will therefore wish to consider adapting it to
reflect their own experience, but the themes and conflicts explored here are
no doubt, universally relevant.
Lectures
We suggest beginning with some discussion on the concept of a Muslim
„diaspora‟. We use the term „diasporic communities‟ to reflect the plurality of
practice and belief amongst Muslim migrant communities in Europe, and
specifically the UK. In light of those multiple identities, we suggest that there
may be some question as to whether the term „the Muslim diaspora‟ is a
useful categorisation. Indeed this very diversity of peoples is a major theme in
many of the issues raised in this module. For instance, writers have argued
that it is this diversity which has contributed towards the failure of the Muslim
community in UK to have their personal law officially recognised by the State.
It would also be useful for students to be given some general background as
to where the Muslim presence in the UK came from, and how the behaviour
and expectations of the Muslim communities in the UK have been conditioned
and affected by their relationships with the UK, both as a colonial power and
as a new home. This discussion might helpfully encompass an historical
43 | P a g e
overview of migration to the UK in the twentieth century, the concept of the
“myth of return” and the development of a nascent Angrezi Shariat.
A simple way of getting students to think about the diversity of the Muslim
community is to ask students to identify all the Muslim communities they have
come into contact with in the UK, and compile a list of all of these countries of
origin. Invite comparison by asking the students to give examples of their
experience of the personal law practices of any of these communities, for
instance wedding ceremonies they may have attended.
Against this background, the following inter-related subjects may then be
considered.
First, what is the position in classical Islamic Law, of the Muslim who finds
himself outside of dar al-Islam? Should he abide by the laws of the state he is
in, even if they conflict with his own personal law? Or, should his own
understanding of the sharia prevail? This discussion can be limited to pointing
out that in classical Islamic jurisprudence, there is in fact little guidance on this
matter. Tutors who wish however to consider this fertile subject in more detail
can expand it accordingly. We suggest some discussion of what the proper
classification for modern day non-Muslim jurisdictions should be. Can Europe
still be considered to be dar al-Harb, or should it more properly be classified
as dar al-amaan or dar al-suhl? How does this classification affect the
behaviour of the individual in instances of conflict of laws?
Definitions
Dar al-Islam
Land of believers, lit. land of Islam
Dar al-Harb
Land of unbelievers, lit. land of war
Dar al-Sulh
Land of Peace
Dar al-Amaan
Dar al-Ahd
Country of refuge, asylum
Country of treat
This look at the internal Islamic juristic discourse on personal law in the nonMuslim world leads on to the second topic for discussion: how have Muslim
44 | P a g e
diasporic communities responded politically to their dilemmas? An interesting
example of the interaction between the state and the demands of the Muslim
communities can be seen in the failure of the Union of Muslim Organisations
in the UK and EIRE during the 1970‟s to have shari’a officially recognised as
the personal law of all Muslims living in the UK. How should this endeavour,
and its failure, be judged in light of the limited successes of other minority
groups? Can either the communities or the State learn anything from the
State‟s discourse with these other minorities? How for instance, has the
Jewish community negotiated with the formal legal system?
This leads conveniently to the third subject for discussion, namely the way in
which the State has sought to contain or accommodate Muslim personal law.
This can be done, in the UK context, with a review of the dialectic between the
courts and the executive. For instance look at the “liberal high-water mark”
(Menski) of Qureshi v Qureshi [1971] and compare it with later statutory
restrictions placed on the recognition of Islamic talaq divorce. This subject
could also be expanded to contrast positivist European models of uniform,
state imposed law, with the more pluralistic models found elsewhere in the
world, notably in former colonies. To what extent has the State elevated public
policy concerns over the religious freedom of the individual? Have the
concessions which do exist been deliberate or piecemeal? Is it accurate to
portray the law relating to minorities in the UK as non-discriminatory? How
has public policy been effected by the Human Rights Act 1998?
Relevant case law
Alhaji Mohammad v. Knott (1969) 1 Q.B. 1 (1968) 2 W.L.R. 1446;
(1968) 2 All E.R. 563
Bibi v Chief Adjudication Officer
R (on the application of Begum (Shabana) v Head Teacher and
Governors of Dinbigh High School [2005] EWCA Civ 199; [2005] 1
FCR 530
45 | P a g e
R (on the application of Begum (by her litigation friend, Rahman)
(Respondent) v. Head teacher and Governors of Denbigh High School
(Appellants) [2006] UKHL 15;
Quoraishi v. Quoraishi (1983) 4 F.L.R. 706; (1983) 3 Fam. Law 86;
(1985) F.L.R. 780
Qureshi v Qureshi (1971) 2 W.L.R. 518
R v Registrar General of Births, Deaths and Marriages, ex p. Minhas
(1976) 2 All E.R. 246 (1977) Q.B. 1
Seemi v Seemi (1990) 140 N.L.J 747
Secretary of State for the Home Department v. Syeda Khatoon Shah
(1997) Imm.A.R. 584.
All of the discussion thus far lays the groundwork for the final and most
significant part of the lecture or lecture series in this module. That is the actual
practice of Muslims living in non-Muslim countries and how their strategies
interact with official State law. This should include a critical examination of
Menski‟s concept of Angrezi Shariat, and students should be encouraged to
look at anthropological studies such as Poulter or Ballard in order to place
their legal analysis in context. Can a system which rejects legal pluralism ever
be said to be „multicultural‟? Is there any prospect that the assimilationist
strategies thus far adopted will ever produce social cohesion?
Seminars
For law students in non-Muslim jurisdictions this topic will be the most relevant
to their prospective practices, whether these are to be in family law or not.
That is because the conflict of laws described above and the consequences of
it could arise in any area of practice. Coming at the end of the course this
module gives students the opportunity to consider in what ways the laws and
customs they have learnt about could impact upon their future case-work. The
proposed seminar structure is therefore to ask the students to conduct a
„mock trial‟. Students should be divided into two groups, one group
46 | P a g e
representing the wife in a fictional trans-national divorce and the other group
representing the husband.
Assessment: Research Project
Assessment details
You are required to write a case study of a British Muslim. The title of your
project is:
Application of Islamic Law in the Muslim Diaspora: Case studies within
the UK
Aims and objectives of the assessment
One of the skills we expect students on this module to acquire is to
develop an understanding of principles of Islamic law and how these
are applied by individual Muslims as well as Muslim communities
around the world. We have therefore set this assessment where
students will develop case studies of British Muslims and their
understanding of Islamic law mainly in the area of family law and the
extent of its application to them in the UK.
Students are expected, through their conversations and research into
the area, to bring out the depth and breadth of Islamic law, knowledge
and understanding of their respondents by distinguishing between the
various interpretations of Islamic law in the area of family law and the
pervasiveness of cultural notions of Islam and Islamic law.
A further aim of the project is to ascertain what the „first port of call‟ is
regarding dispute resolution in the area of family law and why. For
instance, when a problem arises, do British Muslims turn to: the
nuclear family; the extended family; the imam of the mosque; the
community; the English courts; the informal Shari‟a Councils?
47 | P a g e
Methodology:
The project requires a number of research methods. The most important of is
for you to have conducted a thorough research on the topic. There is a fair
amount of published work in the area, some of which we have included in
your bibliography and some articles/chapters are in your pack. You also can
access judgements of English courts, some of which are included in your
lecture handouts.
Since this is a project that demands some skills of analysing conversations
and discussions, you must read up on basic research methods including how
to conduct an interview, how to take notes during the interview and how to ask
supplementary questions. What is also important is for you to be able to tease
out further information from your respondents. Finally but not least, be
sensitive to your respondent; make them feel at ease and assure them that
what they are saying will not reveal their identity in the assessment etc,
How to go about this project:
Identify your respondent i.e., the person who you will have
conversations and discussions with during the term regarding their
views and perspectives on Islamic family law.
You can choose ANY adult British Muslim who agrees to have these
conversations and discussions with you. A British Muslim for the
purposes of this project includes any person, irrespective of origin of
country/birth/race/ethnicity, who is a British national and has made
Britain their home. Their approach to Islam and whether they perform
the rituals of the religion are not a material factor in your choice. As
long as a person says “I am a British Muslim,” that is fine for them to be
your respondent.
Seek their permission to act as a respondent. Explain to them why you
want to have these conversations with them and assure them that the
case study is for academic purposes and discussions only. Please
make sure that whilst it is important to record the details of the person,
48 | P a g e
you undertake that their identity is protected. All conversations are to
be anonymised in your notes.
Start by making notes about the respondent‟s personal details. Are
they male or female? How old is the respondent? What is their country
of birth? What is their ethnicity? Are they Sunni/Shia? What school of
juristic thought do they follow or profess? What is their educational
background? have they been to school/college/university? Are they
comfortable in speaking to you about their views on Islamic family law?
Based on the lectures and seminar discussions every week, have
conversations and discussions reflecting what you have learnt and
read that week in class and in seminars. So for instance, based on the
lectures on sources of Islamic law, ask them what they consider as
valid sources of Islamic law and why.
Then move on to specific areas of family law. After lectures on
marriage and mahr, ask them questions along the following lines: In
your immediate and extended family, what processes are followed to
enter into marriage? Is it the man and woman who make the choice; is
it the parents‟ and relatives‟ choice or is it a combination of the two?
How is this process explained? Is it in religious terms or a process
identified with culture and tradition? Is the nikah performed first
followed by a civil ceremony or is it the other way round? Why? Is the
civil ceremony performed for every marriage in the community? What is
the significance of each ceremony? Are there any negotiations
regarding mahr? How is mahr conceptualised? Is it considered an
important part of the marriage contract or merely symbolic? Do you
consider it as economic security for the woman? Can you provide
examples of the sort of mahr stipulated? Are you aware of divorced
women who have received their mahr? If not, why not? If so, was it
through the English legal system or through any other forum?
49 | P a g e
Next move on to polygamy. What is the respondent‟s understanding
and rationale for polygamy? Is it an unrestricted right of the Muslim
male or was it allowed as an exception in certain specific
circumstances? Are those circumstances applicable now, especially in
the UK? Do you know of any polygamous couples in the UK among the
British Muslim community? What are their reasons for being
polygamous? Are they aware that as British nationals, polygamy is
illegal and an offence under English law? Can polygamy protect a
Muslim wife? Ought the English legal system recognise it and allow
Muslim men to legally marry more than one wife? What are the
reasons for your response?
Divorce. Can the respondents distinguish between the various forms of
dissolution of marriage? How do British Muslims go about getting a
divorce? Is it by the husband pronouncing talaq? Is it by applying to the
courts? What is the consequence of each method? Are they aware of
the difference between talaq, khul’a mubarat and judicial divorce
through a court? Is a judicial decree of divorce by an English court a
valid divorce in the eyes of British Muslims? Do British Muslims use the
Muslim Shari‟a Councils to obtain a talaq if their former husbands
refuse to accept the decision of the court regarding the dissolution of
their marriage?
Inheritance. Is your respondent aware of the Muslim law of
inheritance? Do they follow it? If so, how do British Muslims make
wills? If so, how do they divide their property and other assets, is it in
accordance with the law of inheritance under Islam?
Adoption. What is the perspective, knowledge and understanding of
British Muslims regarding adoption? Do they consider it unIslamic?
What if a childless couple adopt a child? Or if a child has no parents?
Do they consider it a form of adoption to look after that child? Do they
foresee any complications regarding the inheritance of this child?
50 | P a g e
Guardianship and custody. Here, too students are expected to broach
the subject with their respondents and gain insights into their
perspectives on guardianship and custody of a child. Is there any
difference between the two concepts?
Dispute resolution forum/s. Which ones and in what order?
IMPORTANT NOTE:
Please bear in mind that the above questions and issues for
discussions are indicative and a guide for the sorts of questions you
need to ask the respondents. Your conversations and discussions
may raise other issues as well. Please do not feel restrained by these
questions and feel free to formulate your own questions.
Next steps and how to write it up
Your research is in two steps. The first one is to find a respondent and make
conversations and engage with them in discussions on the subjects above.
Make notes of all conversations
The second step is write this up as a review and include analysis and
commentary, based upon your readings, lectures, seminar discussions on the
one hand and your conversations with your respondents on the other. Here,
the aim is for you to be able to highlight the extent to which British Muslims‟
understandings of Islam are influenced by their knowledge of the sources of
Islamic law and the extent to which these are based on their lived
experiences, their culture, tradition and where they come from or where their
parents came from.
The assessment should also touch upon the extent to which British Muslims
feel comfortable, able and willing to use the English courts as their dispute
resolution and if not, why they feel so inclined. Finally, which forums do they
trust most and why?
51 | P a g e
Assessment: Essay Question
A tip might be here to ask students to contextualise „diaspora‟ in Europe using
an historical lens and to conduct research in the area of minorities „fiqh‟.
What do they think of „Muslim institutions‟ such as the European Council of
Fatwa and Research, Muslim Shari‟a Councils of Britain and Muslim
Arbitration Tribunal? How does it compare in their view with similar institutions
in other religions?
Core Reading
M.S.F.G Foblets, “Family Disputes Involving Muslim Women in Contemporary
Europe. Immigrant Women Caught between Islamic Family Law and Women‟s
Rights” in Howland (ed) Religious Fundamentalism and the Human Rights of Women
(2002) London: Palgrave Macmillan pp.167-178
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet &
Maxwell pp. 382-398.
S S Ali, (2007) „Religious Pluralism, Human Rights and Muslim Citizenship in
Europe: Some Preliminary Reflections on an Evolving methodology for Consensus‟
in T Leonon & J Goldschmidt (eds) Religious Pluralism and Human Rights in Europe
Antwerp: Intersentia, pp. 57-79.
Supplementary Reading
I. Yilmaz, “Marriage Solemnization among Turks in Britain. The Emergence of a
Hybrid Anglo-Muslim Turkish Law” (2004) 24 Journal of Muslim Affairs pp. 57-66
S. Bano, Complexity, Difference and ‘Muslim Personal Law’: Rethinking the
Relationship between Shariah Councils and South Asian Muslim Women in Britain
(2004) Doctoral thesis submitted to the University of Warwick 2004.
I. Yilmaz, “Law as Chameleon. The Question of Incorporation of Muslim Personal
Law into the English Law” (2001) 21 Journal of Muslim Affairs pp. 297-308
B. Berkovits, "Get and Talaq in English Law: Reflections on Law and Policy" in C.
Mallat & J. Connors (eds.,) Islamic Family Law (1990) London: Graham & Trotman
pp. 119-146.
52 | P a g e
S. Poulter, "The Claim to a Separate Islamic System of personal Law for British
Muslims" in C. Mallat & J. Connors (eds.,) Islamic Family Law (1990)London:
Graham & Trotman pp. 147-166.
A S Roald, Women in Islam The Western Experience (2001) London: Routledge
A.A.An-Naim (ed) (2002) Islamic Family Law in a Changing World. A Global
Resource Book London: Zed Books pp. 1-21
B. Berkovits, "Get and Talaq in English Law: Reflections on Law and Policy" in C.
Mallat & J. Connors (eds.,) Islamic Family Law (1990)London: Graham & Trotman
pp. 119-146.
S S Ali, (2007) „The Twain Doth Meet! A Preliminary Exploration of the Theory and
Practice of as-Siyar and International Law in the Contemporary world‟ in J Rehman
& S Breau (eds) Religion, Human Rights and International Law: A Critical
Examination of Islamic State Practices Leiden: Martinus Nijhoff Publishers.
S. Poulter, "The Claim to a Separate Islamic System of personal Law for British
Muslims" in C. Mallat & J. Connors (eds.,) Islamic Family Law (1990)London:
Graham & Trotman pp. 147-166.
A S Roald, Women in Islam The Western Experience (2001) London: Routledge
I.Yilmaz, “Law as Chameleon. The Question of Incorporation of Muslim Personal Law
into the English Law” (2001) 21 Journal of Muslim Affairs pp297-308
I.Yilmaz, “Marriage Solemnization among Turks in Britain: The Emergence of a
Hybrid Anglo- Muslim Turkish Law” (2004) 24 Journal of Muslim Affairs pp 57-66
53 | P a g e